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Emerging African Jurisprudence Suggesting the Desirability of the Abolition of Capital Punishment

Document Cited authorities 3 Cited in Related
Vincent
AuthorC. Anyangwe
DOI10.3366/ajicl.2015.0108
Pages1-28
Date01 February 2015
Published date01 February 2015
INTRODUCTION

The death penalty has for thousands of years been the most dreaded1

W. Andrews, Old Time Punishment, Dorset Press (1991); M. Monestier, Peines de Mort. Histoires et Technique des Exécution Capitales des Origines à Nos Jours, Le Cherche Midi (1994).

and probably the most misused2

L. Chenwi, Towards the Abolition of the Death Penalty in Africa: A Human Rights Perspective, Pretoria University Press (2007).

 form of punishment ever. It continues to raise moral and religious issues as well as issues that impinge on law enforcement and the administration of criminal justice. It is thus not only a subject of continuing controversy but also one of continuing research interest. The right to life is the primary right that conditions all others and thus has supreme value because without life, all human rights are superfluous. Unfortunately, although several international treaties outlaw capital punishment neither the International Bill of Rights nor the African Charter on Human and Peoples' Rights explicitly does so. However, the Bill narrowly circumscribes the scope of capital offences and stringently regulates the application of the death penalty thereby strongly suggesting that abolition of that penalty is desirable. After some initial hesitation, there is now developing jurisprudence by the African Commission and a number of African Municipal Courts strongly suggesting that abolition of that penalty is desirable. While this paper briefly recalls the pros and cons of the death penalty, its focus is on the emerging abolitionist jurisprudence in Africa

The death penalty is still very much alive in Africa, a continent burdened with religious, cultural, historical and legal diversities. Many factors account for its retention by the majority of African countries. The penalty is generally seen as an ‘appropriate tool’ in the ‘war’ against serious crimes even though there is no compelling and conclusive evidence to that effect. In some countries, the penalty is said to be warranted by religious injunctions or by the necessity to ensure political and social stability. Public opinion in Africa mistakenly tends to see the death penalty as an effective weapon against rising criminality. Some politicians and legal scholars point out that international law in general was formulated from a Eurocentric perspective and value system and is thus a Western imposition3

R. P. Anaud, ‘Attitude of the Asian–African States towards Certain Problems of International Law’, 15 International and Comparative Law Quarterly (1966): 55; Snyder & Sathirathai (eds), Third World Attitude Towards International Law: An Introduction, Martinus Nijhoff (1987).

and in some ways a threat to national sovereignty and state authority

However, while African countries that still retain the death penalty remain many, a good number of them flirt with outright abolition by having in place a temporary or permanent moratorium on executions.4

Currently, 18 African states have abolished the death penalty de jure and 25 have instituted a moratorium on executions – African Human Rights Commission, Study on the Question of the Death Penalty in Africa, Baobab Printers (2012). The study is the outcome of the work of the Commission's Working Group on the Death Penalty and Extra-Judicial, Summary or Arbitrary Killings in Africa.

Furthermore, there is now a definite and growing trend towards limitation of capital punishment as can be seen in the ever decreasing number and scope of capitally punishable crimes.5

Report of the Working Group on the Death Penalty in Africa (2012), pp. 4, 9; W. A. Schabas, ‘Abolition of the Death Penalty in Africa’, in William A. Schabas (ed.), Sourcebook on the Abolition of the Death Penalty, North-Eastern University Press (1997), pp. 30–5; Manfred Nowak, ‘Is the Death Penalty an Inhuman Punishment?’, in T. S. Orlin, A. Rosas and M. Scheinin (eds), The Jurisprudence of Human Rights Law: A Comparative Interpretive Approach, Institute for Human Rights, Åbo Akademi University (2000), pp. 42–3.

 Uganda recently reduced the number of capital offences and Algeria has announced its readiness to do the same. The Algerian volte-face comes in the wake of the refusal by many countries of refuge to extradite fugitive offenders to Algeria on the ground that they may face execution.6

Arborlaw, The Death Penalty in Arabic Today (2008), available at http://arborlaw.com/blog/the-death-penalty-law-in-arabic-today/ (accessed 23 April 2009). Overruling its earlier decision in Soering v United Kingdom et al. (1989) 11 EHRR 439, the European Court of Human Rights held in 2009 that the extradition of a person to a country where they might face a clear risk of the imposition of the death penalty would be a violation of article 3 (prohibition of torture) of the European Convention on Human Rights. According to the jurisprudence of the Human Rights Committee, a state party that has itself abolished the death penalty, would violate an individual's right to life under article 6(1) of the ICCPR, if it were to remove a person to a country where they were under a sentence of death: Communication No. 829/1998, Judge v Canada, 5 August 2003. An abolitionist state would therefore be right to refuse to cooperate in the imposition of the death penalty and in the denial of other forms of mutual legal assistance.

 Again, a growing number of African states no longer have offences carrying mandatory death sentence. In those states, the passing of the death sentence in capital cases is left entirely at the judge's discretion.7

R. Hood, The Death Penalty: A Worldwide Perspective, 3rd edn, Oxford University Press (2002).

The first part of this article briefly examines the main arguments for and against capital punishment while the second and third parts explore and critically analyse the emerging, though somewhat timid, African abolitionist jurisprudence.

 BASIC ARGUMENTS ON THE DEATH PENALTY

Current debate on capital punishment has gone beyond the traditional arguments based on deterrence, retribution, incapacitation and even public opinion. The issue now is how to get states to stop executing offenders and to completely abolish that form of punishment. This shift in the debate is informed by the conviction that arguments by retentionists are weak, that no government can seriously defend capital punishment as legitimate or appropriate or justified, that the deterrent value of capital punishment cannot be conclusively proved scientifically, and that the abolitionist argument is now firmly an acquis politique and even juridique that needs only to be operationalised.8

W. A. Shabas, ‘The Abolition of Capital Punishment from an International Law Perspective’, paper delivered at the International Society for the Reform of Criminal Law 17th Conference, The Hague, August 2003 and The Abolition of the Death Penalty in International Law, 2nd edn, Cambridge University Press (2002).

While this is indeed the case, the arguments that have been made over the years by opponents and advocates of the death penalty may be briefly examined Incapacitation and general deterrence

The retentionist case is built essentially on four pillars, namely, public opinion support, national security concerns, the rise and sophistication of serious crimes, and religious injunctions (Shari'a law). In Africa's continuing climate of ‘law and order’ politics it is argued that the death penalty is a restraining punishment that permanently incapacitates the offender and brings an end to his criminal career, thereby removing the danger of possible reoffending. Hang a thief when he is young, the retentionist is apt to say with contemptuous irony, and he will not steal when he is old.

The death penalty, it is further argued, serves as general deterrence to serious crime given that its ultimate goal is to influence future conduct by dissuading potential criminals from committing grave crimes. English judges of old used to say with sarcasm that men are not hanged for stealing horses but that horses may not be stolen. The retentionist would furthermore argue that the death penalty is the only form of punishment likely to deter because people fear death more than anything else. Most people would rather that perpetrators of heinous crimes be removed from society.9

Available at http://www.newwordencyclopedia.org/entry/Capital_punishment (accessed 23 April 2009).

But anecdotal evidence points to the fact that in African countries that still retain capital punishment an ever-increasing number of judges are loath to pass death sentences. Judges readily accept pleas in mitigation as a way of avoiding the agony and trauma of having to pass the death sentence. Similarly, prosecutors are also reluctant to ask for the death sentence against a person convicted of a capital crime

Further, much of the evidence on the deterrent effect of capital punishment is inconclusive and comes for the most part from the USA. Even there, more than sixty years ago, an American criminologist argued from his research findings that the death penalty is not a better deterrent to murder than life imprisonment.10

J. T. Sellin, The Death Penalty: A Report for the Model Penal Code Project of the American Law Institute (1959).

A few decades later another American, an econometrist, using sophisticated economic statistical analysis, appeared to have cast doubt on that research by concluding that an additional execution per year resulted in seven or eight fewer murders.11

I. Ehrlich, ‘The Deterrent Effect of Capital Punishment: A Question of Life and Death’, 65 The American Economic Review (1975): 397.

 However, there have since been authoritative refutations of this claim by legal and economist scholars.12

W. J. Bowers and G. L. Pierce ‘The Illusion of Deterrence in Isaac Ehrlich's Research on Capital Punishment’, 85 Yale Law Journal (1975): 187; W. C. Bailey and R. D. Peterson ‘Murder, Capital Punishment, and Deterrence: A Review of the Literature’...

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